Judge Pregerson rules some parts of Measure B are constitutional while others are unconstitutional.
This is the initial ruling we have all been waiting for from the Court. Judge Pregerson has decided that condoms in porn do not violate the First Amendment, however, he did go on to find that much of Measure B does violate the Constitution.
Note: This ruling by the court was on Vivid et al. request for an Order enjoining Measure B from being enforced as well as AIDS Healthcare Foundation’s motion that Vivid’s case be dismissed in its entirety. The case will continue since neither side won a total victory. Vivid was able to convince the Judge to block certain aspects of Measure B while not being able to convince the Judge to enjoin all of Measure B. And AHF could not convince the Judge to dismiss all of Vivid’s claims.
Interestingly, the Judge has allowed the requirement that a producer secure a permit prior to shooting an adult scene or movie. However, he has basically limited the County’s ability to suspend or revoke the permit. The Judge has determined that just allowing the County to have the ability to decide what is or is not a violation would be considered “prior restraint” and is unconstitutional. Judge Pregerson went on to note that the County would have “unbridled discretion” if they were allowed to revoke permits and suspend filming if there were any type of potential “harm” including even a cameraman having a cold.
Furthermore, the County of Los Angeles will not be able to conduct warrantless searches of producers. And once a warrant is obtained, if a violation is found, a fine or criminal penalties could not be imposed without a judicial hearing.
The Court also went on to find that Measure B does not define adult films sufficiently since “adult films” may be a movie that contains activities such as kissing which could possibly transmit disease since saliva contains infectious materials.
Also, the County cannot impose fees under Measure B for permits.
Here are the Judge Pregerson’s own summary of his decision;
“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders, as described in footnote 23. While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the Department’s Measure B duties cannot be performed without fees–or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality.”
In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to “shut down” and prevented from shooting other movies.
So AHF wins some and Vivid wins some… All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.
In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.
Click here for a copy of Judge Pregerson’s Ruling;
by Attorneys Greg Piccionelli and Michael W. Fattorosi
Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50 year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly. Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry.
Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home.
While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection. Therefore, this should be made very clear: commercial production of sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient reason for a company to take such a risk while over 99% of the state of California currently remains legal for production.
If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time.
Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety Magazine, could certainly be a possibility. Ventura County, as well Riverside County and San Bernardino County are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B therefore it is recommended that no one produce in Simi Valley as well).
Three cities even closer to the San Fernando Valley then the counties discussed are Pasadena, Vernon and Long Beach. Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen.
Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed.
The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime. You may also have your equipment confiscated and held until your first court appearance.
Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B proscribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection – unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection.
It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out of state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County, for example, Las Vegas, Phoenix, North Carolina or even Canada, the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit you company headquarters in one of those states to perform an inspection.
In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn’t falling and we should all remain calm.
The opinions stated in this story should not be viewed as legal advice. Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production.
If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at (818) 881-8500 or via email at michael(at)fattlegal.com. Greg can be reached at (818) 201-3955 or via email at greg(at)piccionellisarno.com.
As most of the readers of this site already know Ballot Measure B was passed by the voters of Los Angeles County yesterday by a margin of 56% to 44% with approximately 2,000,000 votes cast. The question now becomes – what happens now ? Are condoms now required on all shoots under Ballot Measure B ? (Note: Remember Cal-OSHA regulations now require barrier protection for all shoots where there is an employer-employee relationship) When does the law go into effect ? What if I don’t use condoms what will happen ? What if I move my production company and/or shoots out of Los Angeles County ? Will the FSC or a studio file a legal challenge to Ballot Measure B ?
All of these questions are quite complex and will be answered in this and subsequent articles as more information and analysis becomes available. There is still a lot of uncertainty as to Ballot Measure B. What is certain is that this fight has only begun. I do not anticipate that the industry will just accept the Ballot Measure B and move on. The opposition to B will now move towards a city by city fight and/or a legal challenge.
Where and When Does B Take Effect ?
As I wrote on September 25, 2012 Ballot Measure B will ONLY apply to the unincorporated areas of Los Angeles County when it is certified by the Los Angeles County Board of Supervisors ( http://adultbizlaw.com/what-youre-not-being-told-about-the-condoms-in-porn-law/ ). In order for this law to take effect in cities such as Los Angeles, Glendale, Malibu or any of the 85 independent towns and cities in Los Angeles County – each one of those cities will have to independently debate, vote on and themselves pass/adopt Ballot Measure B as law in their town. How long will that take is anyone’s guess at this point. And it is not certain that all 85 independent towns and cities will even adopt Ballot Measure B. I can envision a situation in which some of the smaller towns that do not have any contact with the adult entertainment industry will simply ignore this law entirely.
Here is a list of the cities that can adopt the law now that Ballot Measure B has passed;
Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Los Angeles, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Walnut, West Covina, West Hollywood, Westlake Village and Whittier
And there are three cities that cannot adopt Ballot Measure B. Long Beach, Vernon and Pasadena – all three do NOT contract with the Los Angeles County Department of Health. Ballot Measure B requires that the Los Angeles County Department of Health enforce the law and therefore if Long Beach, Vernon and Pasadena have their own health departments, Los Angeles County Department of Health has NO jurisdiction to enforce condoms on any production company in those cities.
What About Production Companies Located Outside Los Angeles County ?
Having a production company located in Pasadena, Long Beach or Vernon will have the same affect as having a production company located in Las Vegas, North Carolina or even Canada. The Department of Health Inspector cannot travel out of state to inspect health permits nor can they go into Pasadena, Vernon or Long Beach to inspect health permits. They simply do not have jurisdiction to do so.
If you do not have a production company located in Pasadena, Long Beach, Vernon, Canada, North Carolina or Las Vegas it is still going to be a while before this law goes into effect in cities within Los Angeles such as Chatsworth, Woodland Hills and Northridge. The first step is that the election results have to be certified and once certified the Los Angeles City Council would have to vote on and adopt Ballot Measure B. I anticipate this could happen as soon as sometime in January 2013 or it may take months after that. I do believe that the City of Los Angeles Council will adopt Ballot Measure B to replace the “Safer Sex in Film Ordinance” that the City Council adopted last January.
After Ballot Measure B is adopted by the city of Los Angeles when will they begin enforcement is also anyone’s guess. It is difficult to estimate how long it would take rules of enforcement to be adopted by the Los Angeles Department of Health. It could be several months or even up to a year. The City of Los Angeles adopted their own “condoms in porn” law last January and have yet to finish trying to figure out how to actually enforce their law. The same may prove to be true of Ballot Measure B.
What About a Constitutional Challenge to Ballot Measure B ?
We also cannot fully anticipate how any legal challenge on constitutional grounds may play out. It is possible that any person or entity affected by Ballot Measure B would ask the court for an injunction on the enforcement of the law. Whether such an injunction would be granted would also be speculation. It would be speculation to state whether any such challenge would be successful.
I have had several discussions with attorneys who have handled First Amendment challenges before and most are split on the issue of how successful a challenge would prove to be. The success will ultimately turn on the issue of whether a court uses “intermediate scrutiny” or “strict scrutiny” to test the validity of the language of the law. If the court finds that the “intermediate scrutiny” test should be used then it is more than likely that Ballot Measure B will survive a challenge. However, if “strict scrutiny” is the standard used then it is likely that B will fail a constitutional challenge. There was a recent decision in the Ninth Circuit Court of Appeals (Los Angeles County is in the Ninth Circuit’s jurisdiction) that might be helpful in challenging the constitutionality of Ballot Measure B.
The Ninth Circuit ruled that the First Amendment protects yellow pages phone books, rejecting a Seattle law that sought to limit distribution of the phone book. Under Seattle’s 2010 ordinance, the phone book publisher had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the phonebook violated their privacy and created waste.
Read More at Courthouse News – http://www.courthousenews.com/2012/10/15/51283.htm
This is an interesting case in regards to Ballot Measure B. The Ninth Circuit Court of Appeals held that phone books are entitled to full protection under the First Amendment and therefore the “strict scrutiny” test had to be applied to the permit law. The City of Seattle argued that only the “intermediate scrutiny” test had to be applied and thus the permits helped served to reduce waste, protect the privacy of its citizens and helped the city recover the costs of disposal of the unwanted phone books. As in Ballot Measure B, the City of Seattle wanted the phone book publisher to pay a permit fee to enforce the law.
It is simply too early to state with any specificity as to what is actually going to transpire in the industry because of Ballot Measure B. In the words of William Shakespeare Ballot Measure B might prove to be “much ado about nothing.” Ballot Measure B is a badly written ordinance and is very ambiguous as to its definitions of certain types of productions. It actually raises more questions then it answers and we may not have answers until people are actually prosecuted under the law.
We do not know if it covers content trades between performers. We do not know how Ballot Measure B will apply to “celebrity sex tapes” shot in Los Angeles County. Will the “reality star of the month” be required to force her male co-star to a wear condom to have any chance of selling her sex tape to Vivid for distribution ? If a production company is located in Los Angeles County will it still be required to have a health permit even though they shoot all their content overseas ?
The actual application of Ballot Measure B – if it is ever enforced – will be a legal nightmare not only for the companies affected but also those lawyers defending their clients and a judge that has to figure out what the scope and breadth of the law is. This issue is far from over and B is far from being enforced. It is time to take a deep breadth and get back to work. There is a lot to do in order to fully understand what B really means.
Keep checking back here for more updates as to Ballot Measure B as more information becomes available.
This is the day we have been waiting for since the end of July when the AIDs Healthcare Foundation was able to place their “Condoms in Porn” legislation on the ballot. Today is the day the voters of Los Angeles County decide the faith of personal freedom in our bedrooms and on set. Today is the day that will decide if a small community of former outlaws and outcasts can defeat an over powering multi-million dollar special interest group that is intent on forcing their agenda on not only our industry but the rest of the world. If you do not live in Los Angeles do not think that a ballot measure or law like “condoms in porn” cannot come to your city or state. It can and it will. AIDs Healthcare Foundation has vowed to fight and to go anywhere to force condoms not only on porn but on monogamous couples of any sexual orientation to force them to use condoms in their own bedrooms while they cam.
Ask yourself this – do you want special interest telling you how to live your life ? How to have sex with your partner ? Do you want AHF to set the standard of what is acceptable behavior in the bedroom between two consenting adults ? AHF wants you to think this is a vote about worker safety. When was the last time you were asked to vote on a hard hat ?
Vote No on B and keep Weinstein and government out of our bedrooms !
Here is an excerpt from the speech I gave at the LA Porn Tours Rally on Bus Tour on Saturday, November 3rd;
“On November 6, the voters of Los Angeles County are going to be asked to decide a ballot measure about the sexual rights of a small inclusive community within its borders, a community that is often misunderstood and rarely given a voice, a community that is publicly shunned but privately enjoyed, a community that has fought for its right to exist through years of struggles, court battles and legislation. Those that make up this community only want one thing: The right to choose for themselves how to live and work.
Michael Weinstein wants the voters to believe that the adult industry in Los Angeles is a cesspool of HIV and sexually transmitted diseases. He is playing the fear mongering card, that somehow, if not stopped, the porn industry will infect the rest of Los Angeles. This is a familiar argument to the gay community; this is the argument that was used against them when the world first learned of HIV.
Michael Weinstein… wants to use the industry and their products to send a message. He wants to use porn for nothing more than product placement. That message and that product are condoms. Yet he calls it a workers safety issue. Instead of government representatives, workplace safety experts, physicians and industry representatives working together to develop a comprehensive plan to protect performers without infringing on First Amendment rights, Mr. Weinstein is asking the voters of Los Angeles County to decide workers safety laws. This is unprecedented in California. The public does not and should not vote on the height of scaffolding or the guards on chainsaws. As an industry, we only want the right to decide this issue for ourselves and not have it forced upon us. Performers should have the right to choose. They want their sexual rights…. Measure B is an attack on the industry, it is an attack on performers, it is an attack on the Constitution, it is an attack on the sexual rights of all Americans that want—no, demand—that the government and those like Weinstein stay out of their bedroom.”
(CANOGA PARK, CA) — Adult performers and other adult industry personalities plan to demonstrate their opposition to LA County Measure B with a press conference in Canoga Park and follow-up demonstrations this Saturday, November 3.
“Proponents of Measure B would like you to think that it’s just about using condoms in porn, but that’s not true,” adult-industry blogger Tod Hunter said. “If this passes, adult content will have to be shot under emergency-room protocols. The same rules that protect an ER nurse from the spurting blood of a gunshot victim will apply to professional adult performers — even husbands and wives when they are working together. And producers will have to pay extra for filming permits to pay for inspections of their sets. Measure B is a declaration of war against the adult industry, an attempt to shut it down by smothering it in bureaucratic red tape.”
The press conference will take place at an adult production studio in Canoga Park, and the rallies will follow. The bus transport has been arranged by the organizers of LA Porn Tours, which offers adult-industry fans the chance to see the places where adult content is shot.
“Everybody in the adult industry is doing what we can to defeat this measure,” LA Porn Tours’ Benjamin Free said. “I got a bus, and we’re taking it to the streets.”
The performers are looking forward to the demonstration.
“I believe we performers should have the choice whether to use condoms or not,” performer Alex Chance said. “We shouldn’t be forced into doing things with our bodies that we do not want to do.”
Performers currently planning to join the press conference and rally include Alex Chance, Abby Cross, Shay Fox, Tara Lynn Foxx, Jessica Jaymes, Kagney Linn Karter, Keiran Lee, Tony Martinez, Alexis Monroe, Chanel Preston, Natasha Star, Alison Tyler, Heather Vahn, Taylor Wane and Prince Yahshua, as well as adult industry personalities Michael Fattorosi, Michael Whiteacre, Tod Hunter, photographer Rick and director Mo.
Adult industry professionals who want to participate and mainstream press who want to arrange interviews should contact Rick Garcia on Twitter at @IndustryByRick or Benjamin Free on Twitter at @LAPornTours.
One issue that is yet to be discussed is the permanency of the law if Ballot Measure B is passed. While some may realize that it may be challenged in a court of law what many do not realize about B, or any other ballot measure, is that once passed it cannot simply be overturned by an act of an legislative body. Which means if B passes the only way to get rid of it is if there is another ballot measure to repeal it. And that almost never happens. Once law, it will be law for a very long time – quite possibly forever.
For example, Proposition 13, a California ballot measure that was passed in 1978 to reduce property taxes paid by homeowners in California ( Please see: http://en.wikipedia.org/wiki/California_Proposition_13_%281978%29 ). It intent of Prop 13 was to limited the amount of tax that can be assessed on real property. Through-out the years Prop 13 is often cited as one of the main reasons behind California’s economic woes. To many it has crippled the California government is being able to balance the state budget. It was legally challenged but the United States Supreme Court upheld its constitutionality in 1992. Many governors since 1978 have wanted to abolish the tax restrictions in place since 1978 but have not been able to challenge the law with the voters.
This will be the exact situation the industry will face if Ballot Measure B passes. If the law withstands a legal challenge in the courts it will require another public vote to repeal it. It will not be sufficient to lobby against this law with local or even state level politicians in the hope they would act to repeal it. Not only does the industry need to realize this but also the tax payers of Los Angeles County.
Also, while the initial law seems to indicate that the permit fees paid by the those requiring to secure the permit will pay for the enforcement of the law, it should be noted that this funding requirement can be changed sometime in the future by the Los Angeles County Board of Supervisors.
According to Ballot Measure B, the ordinance can be amended by the Board of Supervisors ONLY to further the goals of the measure. Meaning they can vote to change anything in regards to the law if those changes enhance its effectiveness. Which basically means that they can, sometime in the future, amend the law to shift the burden of enforcement to the tax payers. If the Department of Health realizes that no one is securing the necessary permits and therefore there is not enough money for enforcement, the Los Angeles Board of Supervisors could budget county tax dollars to spend on inspections and enforcement of Measure B.
Another legal issue I see with Ballot Measure B is the ability for a Los Angeles Department of Health inspector to enter the private residence of Los Angeles’ citizens at will and without a search warrant in order to perform an inspection. Ballot Measure B makes no distinction between a business location and a private residence in regards to inspections. As I had discussed in prior articles, Ballot Measure B also applies to married monogamous couples that live web cam with each other. It’s not limited to just “traditional porn production companies.” It would also apply to any adult performer that may also produce content for his/her website. Usually performers do not have a studio address and many work out of their home. With Ballot Measure B, a health inspector will have the right to knock on the door of performers with websites and search their homes and records.
New starlet Teal Conrad was in favor of Ballot Measure B – until she learned the truth about what it would require. Now she has changed her mind. See other performers that are against Ballot Measure B at PerformersForChoice.com